United States Court of Appeals

For the First Circuit

No. 10-1100

JIAO HUA HUANG,

Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,

Selya and Howard, Circuit Judges.

Wei Jia was on brief for petitioner.

Ada E. Bosque, Senior Litigation Counsel, Office of

Immigration Litigation, Tony West, Assistant Attorney General,

Civil Division, and William C. Peachey, Assistant Director, were on

brief for respondent.

September 10, 2010
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LYNCH, Chief Judge. Jiao Hua Huang, of China, petitions

for review of a December 30, 2009 order by the Board of Immigration

Appeals (BIA). The BIA, affirming a March 14, 2008 ruling of an

Immigration Judge (IJ), denied Huang's application for asylum and

withholding of removal. Huang argues that the BIA erred by

adopting the IJ's adverse credibility determination. He further

argues that the BIA erred in deciding not to remand the proceedings

to the IJ to determine if he could demonstrate "other resistance"

to a coercive population program in light of Matter of J-S, 24 I &

N Dec. 520 (AG 2008), a decision issued after the IJ's ruling in

this case. We deny the petition on both grounds.

I.

On December 12, 2004, Huang entered the United States

without authorization. With the assistance of counsel, he

submitted an application for asylum on August 29, 2005. Huang's

asylum claim is predicated on his and his wife's encounters with a

coercive population program. We briefly summarize the facts at the

center of Huang's asylum claim as he described them in a written

statement submitted with his application.

Huang married Xiu Zhen Ren on August 5, 1989, in a

traditional ceremony, and registered the marriage on June 1, 1991.

Ren gave birth to a son on August 31, 1990, and the couple was

fined 400 RMB for having a child before the registration of their

marriage. Because Ren's first child was a boy, Ren was required to
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have an intrauterine device (IUD) inserted, and was subjected to

regular medical checkups. In January 1996, Ren employed a private

doctor to remove the IUD.

Ren discovered she was pregnant in March 1996, and

subsequently moved to her mother's house in order to hide the

pregnancy. Because Ren failed to undergo scheduled medical exams,

family planning officials visited Huang on several occasions and

inquired as to Ren's whereabouts. In order to avoid these

encounters, Huang joined Ren at his mother-in-law's home on August

14, 1996. That evening, eight family planning officials entered

the home and dragged Ren away by force despite Huang's attempts to

stop them. Ren was taken to Lianjiang County Hospital, where an

abortion was induced. Two months later, Ren underwent another

forced IUD insertion procedure.

Huang attempted to leave China in May 2001, but was

arrested for illegal departure, detained for one week, and released

only upon the payment of bail in the amount of 10,000 RMB. Upon

his release, he remained in China until 2004, when he successfully

left China and entered the United States via the Netherlands,

Venezuela, and Mexico.

On October 3, 2005, a Department of Homeland Security

asylum officer interviewed Huang with the assistance of an

interpreter. Huang could not remember many details regarding his

journey to the United States, such as the name on the passport he
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used, or the names of airlines and hotels along his trip. Based

upon various inconsistencies within Huang's statements--including

a discrepancy as to facts that relate to whether Huang filed his

asylum petition within one year of entry into the United States,

namely, whether Huang last visited a doctor in China in July or

September 2004--the asylum officer determined that Huang "did not

present credible evidence that he was outside the United States

during the year immediately preceding the date of filing." The

officer referred Huang's application to immigration court for

removal proceedings. Huang was served a Notice to Appear before an

IJ on October 17, 2005.

Huang appeared before the IJ, with counsel, on four

occasions between July 20, 2006 and February 4, 2008. Huang

conceded removability, and sought asylum and withholding of

removal. He testified at the July 11, 2007 hearing, and his

testimony generally recalled the same events recited in his asylum

application, including Ren's forced abortion, Huang's 2001

unsuccessful attempt to leave China, and his 2004 trip. With

regard to his 2004 journey, Huang stated he paid a snakehead 50,000

dollars of borrowed money for assistance in getting to the United

States. Huang stated he left China on October 28, 2004, traveled

through the Netherlands, Venezuela and Mexico, and arrived in Los

Angeles on December 12, 2004. He testified that, from Los Angeles,

"somebody bought [him an] air ticket," and he flew to New York to
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meet his cousin. Huang recalled using a passport with the name

"Chen Bin" for part of his trip. He remembered the colors on the

plane he took to Hong Kong, but could not remember the plane

colors, or airline names, of any of his other flights. When asked

why the forced abortion led Huang to seek asylum for himself and

not his wife, Huang responded that it was not convenient for his

wife to leave for the United States because she was a woman and

needed to take care of his child.

Huang's cousin, Bin Yao Yang, testified during the

November 26, 2007 hearing. Yang corroborated that Huang met her in

New York on December 13, 2004, and she stated it was her

understanding that he had only entered the United States the

previous day.

In a March 14, 2008 oral decision, the IJ rendered an

adverse credibility determination against Huang, and concluded that

his asylum application, while timely, was legally insufficient.

The IJ based the credibility determination on the lack of detail

and inconsistencies within Huang's testimony. Specifically, the IJ

found he did not recall his 2001 attempt to leave China, or the

detention that followed, with sufficient detail. In addition, the

IJ noted he was unable to provide a basic description of all but

one of the airplanes he took on his 2004 journey, and offered few

other details about his trip. Details he did recall differed from

his asylum interview; notably, before the IJ he testified he used
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a Chinese passport with the name "Chen Bin," but in his asylum

interview he stated he used a foreign passport with a name he did

not know. Citing Matter of S-M-J, 22 I & N Dec. 722, 724 (BIA

1999), the IJ also noted that in asylum cases, "where it is

reasonable to expect corroborating evidence for certain alleged

facts, such evidence should be provided," but none was. The IJ

observed that, without reasonable explanation, Huang offered no

documentary evidence regarding his travels, had only one photograph

of his family, and was not wearing a wedding ring. Those documents

that Huang did offer--including his marriage certificate and his

son's and wife's birth certificates, all with a date of issuance of

March 25, 2005--were found suspect. In the IJ's view, Yang's

testimony, while corroborative of Huang's date of entry, did not

restore his credibility. The IJ concluded that Huang had not

offered credible testimony to demonstrate past persecution or a

well-founded fear of future persecution.

On May 15, 2008, the opinion in Matter of J-S was

published and held, inter alia, that even though the spouse of a

victim of a coerced abortion or forced sterilization procedure is

not per se eligible for refugee status under 8 U.S.C. section

1101(a)(42), such an asylum applicant can still demonstrate that he

qualifies as a refugee on account of persecution for "other

resistance" to a coercive population program. Matter of J-S, 24 I

& N Dec. at 537. Huang submitted his brief in support of his
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appeal to the BIA on June 19, 2008, a full month after Matter of JS was issued. That brief failed to make a claim under Matter of JS and did not seek a remand on that basis. 

On December 30, 2009, the BIA affirmed the IJ's decision,

finding no clear error in the IJ's credibility assessment in light

of the lack of detail and inconsistencies within Huang's testimony.

The BIA determined that, even if credible, he had not established

a well-founded fear of persecution, and was therefore not entitled

to the requested relief. Finally, the BIA cited Matter of J-S, and

noted that "since the respondent does not allege 'other resistance'

or claim that as a basis for his fear of returning to China, we do

not find it necessary to remand."

II.

Huang seeks review on two grounds. First, he asserts the

BIA erred in upholding the IJ's adverse credibility determination.

Second, he argues the BIA should have remanded the proceedings to

the IJ in light of Matter of J-S.

We review findings of fact for substantial evidence and

are required "to uphold the agency's findings so long as the record

does not 'compel a reasonable factfinder to reach a contrary

determination.'" Rivas-Mira v. Holder, 556 F.3d 1, 4 (1st Cir.

2009) (quoting Chhay v. Mukasey, 540 F.3d 1, 5 (1st Cir. 2008)).

"Where the BIA has adopted the IJ's credibility determination, as

here, we review the determination of the IJ." Mewengkang v.
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Gonzales, 486 F.3d 737, 739 (1st Cir. 2007). "We review questions

of law de novo, giving substantial deference to the BIA's

interpretation of the underlying statutes and regulations in

accordance with administrative law principles." McCreath v. Holder,

573 F.3d 38, 41 (1st Cir. 2009).

A. Credibility Determination

We uphold credibility findings if "the IJ has given

reasoned consideration to the evidence and has provided a cogent

explanation for his finding." Muñoz-Monsalve v. Mukasey, 551 F.3d

1, 5 (1st Cir. 2008). Here, the IJ's credibility determination was

plainly predicated on "reasoned consideration," explained cogently

in the IJ's decision, and supported by the record. Huang could not

recall significant details regarding his 2001 attempt to leave

China, borrowing money to pay the snakehead in 2004, or his

successful journey to the United States. Although it was

reasonable to expect he would have documentary evidence in the form

of ticket stubs or other travel receipts, he offered very little.

And there are numerous discrepancies between his July 11, 2007

testimony before the IJ and his October 3, 2005 statement to the

asylum officer, including whether he knew the name on the passport

he traveled under in 2004, and whether he entered the United States

from Mexico aboard a taxi or in a truck. 

In his petition, Huang only focuses on one of the grounds

for the IJ's credibility determination: the discrepancies between
 Huang's argument that the IJ erred because the decision 1

simultaneously found that Huang's testimony was not credible and

that Huang's asylum claim was timely is meritless. Unlike other

elements of his testimony, his statements relating to his date of

entry were corroborated by his cousin. Moreover, even if the IJ

found one aspect of his testimony accurate, that does not require

a finding that he is credible overall. 

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his statements before the IJ and the asylum officer. We are 1

unpersuaded by Huang's assertion that these discrepancies should be

discounted because of the "inherent unreliability" of asylum

interviews. Inconsistencies between statements made during a

credible fear interview and testimony during a hearing provide a

legitimate basis for an adverse credibility determination. See

Weng v. Holder, 593 F.3d 66, 72 (1st Cir. 2010). Further, the

alternative interpretation of these inconsistencies that Huang

offers does not cast any doubt upon the proposition that

substantial evidence supports the findings the IJ did make.

“Merely identifying alternative findings that could be supported by

substantial evidence is insufficient to supplant the [IJ's]

findings.” Albathani v. INS, 318 F.3d 365, 372 (1st Cir. 2003).

Because the IJ's credibility determination is supported by

substantial evidence, this claim of the petition is denied. 

B. Remand Pursuant to Matter of J-S

Huang next argues the BIA should have remanded

proceedings to the IJ in light of Matter of J-S so that Huang could

better establish "other resistance" to a family planning program as

a ground for his asylum claim.
 The government contends Huang has not exhausted his 2

administrative remedies with respect to this claim, thus depriving

this court of jurisdiction to review it under 8 U.S.C. section

1252(d)(1), but it does so without any citation to the case law as

to possible exceptions to this rule. See Khalili v. Holder, 557

F.3d 429, 433-34 (6th Cir. 2009); Sidabutar v. Gonzales, 503 F.3d

1116, 1119-20 (10th Cir. 2007). But see Amaya-Artunduaga v. United

States Attorney Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006) (per

curiam). The government's argument misreads the BIA's order, which

found that Huang had not alleged "other resistance" to a coercive

population program, or sought a remand based on Matter of J-S. 

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Upon reviewing the BIA's finding that remand was

unnecessary "since the respondent does not allege 'other

resistance' or claim that as a basis for his fear of returning to

China," we conclude that there was no error in this determination.2

Huang did not expressly profess "other resistance" to a coercive

family planning policy. The BIA was not required to find that

Huang's broad statement in his brief that he was requesting asylum

and withholding of removal "based on account of Ren's forced

abortion taken place on August 14-15, 1996 and his opposition to

such government actions" constituted an assertion of a claim under

Matter of J-S. The record supports the BIA's conclusion. See

Pakasi v. Holder, 577 F.3d 44, 48 (1st Cir. 2009).

The petition is denied.